Monday, February 28, 2011

Apparently some citizens and attorneys feel successful Virginia redistricting is an unlikely conclusion, and decided to file a lawsuit in the US District Court for the Western district of Virginia to jumpstart the redistricting process. In the case of Carter v. State Board of Elections, the plaintiffs are individuals claiming their votes are diluted in state Senate elections under the current districting plan.

This case filed on February 4, 2011 appears to have been prepared and filed with the matter of days after updated census information came out. The plaintiffs allege that as Virginia has divided two party government a deadlock on redistricting is likely, and hence a lawsuit asserting rights to equal protection under the law is not premature.

The case is dismissed

Federal district courts are courts of limited jurisdiction. As such, federal courts have the duty to determine, even without the request of one of the parties to the case, if the federal court has jurisdiction. Judge Moon, prior to any filings by the defendants, dismissed the case as he determined the federal court does not currently have jurisdiction even if everything the plaintiffs say is true. This was a mere eleven days after the filing of the Complaint.

Judge Kessler’s reasoning that citizens are burdening the nation’s healthcare system without buying insurance ignores the fact that the burden is imposed by federal government mandate, and not by private contract law

In short, Judge Kessler argues that people without insurance put a burden on the healthcare system because hospitals (or rather ER departments, which are usually separate legal entities form the hospital) must treat patients whether they can pay or not under EMTALA.This does not matter for purposes of determining if not purchasing health insurance is economic activity.Rather than go into detail I refer the reader to the following posts by writer Avik Roy:

In the first healthcare decision after the Virginia and Florida rulings striking down the individual mandate of President Obama's healthcare reform package, a Federal Judge for the United States District Court for the District of Columbia has ruled that the healthcare reform law and specifically the individual mandate are constitutional. One may criticize the ultimate ruling in the case, but Judge Kessler went to great lengths to acknowledge certain particular strengths of the plaintiffs challenging healthcare reform on a constitutional basis.

The plaintiffs in the case appear to be individuals who either do not access traditional healthcare services or only pay out of pocket for healthcare services, thereby making them good plaintiffs for a challenge to the constitutionality of the individual mandate.

The procedural posture of the case

Unlike the Virginia and Florida decisions, the DC case was being addressed at the Motion to Dismiss stage at the beginning of the case. Judge Hudson in Virginia and Judge Vinson in Florida at decided at the Motion to Dismiss stage that the plaintiffs had stated sufficient facts to establish justiciability and raise a constitutional question worthy of potential adjudication at trial. Essentially in both the Virginia and Florida cases there was a motion to dismiss heard and denied. At the motion to dismiss stage nearly all factual inferences will be decided in favor of the plaintiff. Whereas at the summary judgment stage, the stage at which the Virginia and Florida cases were decided, a slightly more balanced approach is taken by the court in determining the relevant facts of the case. What is interesting about Judge Kessler's decision to dismiss the DC case at the motion to dismiss stage is that the dismissal results in an automatic and early right to appeal for the plaintiffs in the DC case. In comparison, had Judge Hudson or Judge Vinson dismissed either the Commonwealth of Virginia's claim or the other 26 states’ claims at the motion to dismiss stage those cases would have been submitted to the federal appellate circuit courts in the fourth and eleventh circuits as early as nine months ago. Conceivably had that occurred the plaintiffs in the Virginia or Florida cases could have been petitioning the Supreme Court of the United States right now having already obtained circuit court decisions.

Justiciability: do the plaintiffs have a right to sue?

Each of these lawsuits challenging the constitutionality of the healthcare reform law face a series of hurdles that could potentially prevent the individual mandate from being discussed in any given final ruling. These doctrines fall under the broad category of justiciability. Crudely put, justiciability is an analytical doctrine designed to only allow proper parties to bring lawsuits and only in matters of actual current controversies. The doctrine of standing governs whether a party has a right to bring a lawsuit in the first place. The doctrine of ripeness governs whether or not a controversy has reached a point in which the effects of the controversy can be sufficiently felt by the plaintiff thereby giving rise to a cause of action. It is not preordained that plaintiffs in these constitutional challenges will automatically have standing as the plaintiff's will have difficulty showing that each particular plaintiff is going to be directly negatively affected by the individual mandate. It is also not preordained that plaintiffs in these cases have ripe claims as the individual mandate for all intents and purposes appears to not go into effect until 2014. Although I believe that the plaintiffs in these cases all have standing even as mere citizens of the United States of America and all have ripe claims as the individual mandate is imminent and affecting decision-making today, it is not the case that these factors will make a challenge to healthcare reform justiciable in some judge’s eyes.

Judge Kessler in pages 12 to 25 the opinion addresses the issue of justiciability. In one of the more thorough analyses of justiciability I have seen, she clearly and rightfully determines that the plaintiffs in this case are proper parties to bring this lawsuit, and that the imminent harm of the imposition of the individual mandate warrants addressing claims now rather than waiting until 2014. This particular analysis is quite important as it shows substantial judicial independence in refusing to dismiss the lawsuit on mere procedural grounds.

General welfare clause: the individual mandate is not a tax

The United States government has also attempted to justify the constitutionality of the individual mandate under the General Welfare clause of the United States Constitution which, in this instance, requires considering the individual mandate to be a tax. Much to her credit, on pages 57-58 of the opinion, Judge Kessler dismisses this argument as Congress specifically claimed the fine for not purchasing health insurance was a penalty and not a tax.

The Logical fallacies of the DC decision

On pages 25 to 55 of Judge Kessler's decision she addresses the constitutional basis for Congress’ authority to mandate the purchase of health insurance under the commerce clause of the United States Constitution. Her primary contention is that the decision to not purchase an item is comparable to the decision to purchase an item. In other words, the choice to refuse to purchase health insurance is an economic decision, a decision to use one's money for some other purpose, thereby is an action that on an individual basis and in the aggregate has a substantial effect on interstate commerce and can be regulated under the commerce clause of the United States Constitution. On pages 46 to 49 Judge Kessler does state that at some point every plaintiff will utilize health care services. There are two major logical fallacies underlying Judge Kessler's reasoning on finding the individual mandate constitutional. The first fallacy is the unreasonable belief that a decision not to act constitutes an economic choice and therefore can be regulated. The second fallacy is equating the purchase of health care with the purchase of health insurance.

A. The first fallacy: misfeasance versus nonfeasance

Understanding the difference between misfeasance and nonfeasance allows one to differentiate between an affirmative act and passive inaction. In legal terms, misfeasance is a willful or otherwise knowingly negligent action taken by a bad actor that could potentially result in harm to person or property. Examples of misfeasance include, running a red light, breaching a contract, or punching someone in the face. Nonfeasance, on the other hand, is the willful inaction despite the knowledge that an affirmative act might prevent harm to person or property. Examples of nonfeasance include, not stopping to help someone in an accident, not correcting the clerk who gives another customer change for a twenty dollar bill when the customer handed the clerk a ten dollar bill, or allowing your friend to enter a contract with somebody you do not feel is trustworthy. The major difference between misfeasance and nonfeasance is that misfeasance requires an affirmative action, nonfeasance is mere inaction. Generally speaking, in the United States, nonfeasance, or inaction, is not penalized. Those few types of instances in American law in which nonfeasance was penalized have been slowly phased out over the years. (There are a few notable exceptions where states or localities have attempted to penalize nonfeasance such as was humorously portrayed in the final two episodes of a 1990s sitcom). Essentially, in the United States under both state and federal law, inaction is nothing more than the choice not to act. Just because the alleged choice in this instance is the decision not to purchase a particular type of product doesn't change the fact that that choice constitutes legal inaction.

B. The second fallacy: explaining by analogy why purchasing health insurance is not the same as purchasing health care

On a basic level most people understand that purchasing health insurance is not the exact same thing as purchasing health care. Health insurance is nothing more than a system for paying for healthcare. There are advantages and disadvantages to paying for healthcare with health insurance. The commerce clause does not appear to grant authority to Congress to regulate how one must pay for necessary goods. To understand why being forced to purchase health insurance to pay for healthcare is an illogical extension of commerce clause power it is best to look at analogous situations of goods or services that all people inevitably consume.

The first example is transportation: Imagine if the federal government decided that the best way to pay for you to get from your home to work, or to visit family, or to take business trips, or to go to the doctor is to purchase transportation insurance. This transportation insurance would then be responsible for paying for airline tickets, bus fare, car payments, gasoline, and any other incidental expenses of transportation. Clearly most people do not wish to purchase transportation insurance, as I have described because we prefer to choose the car we drive, the airline we use, or even when to ride the Metro. Under the theory suggested in this case, as most, if not all people will require transportation, the United States Congress has the power to force individuals to purchase transportation insurance. There is an argument that perhaps people will choose to stay at home, or only walk, but it is likely inevitable that all people will at some point avail themselves of the transportation system.

Perhaps a better analogy might be food insurance. As of 2011 people in the United States of America still obtain their nutrients and calories to continue to live by eating food. Imagine now that the federal government requires you to purchase food insurance which is designed to pay for the food that you eat. Clearly all people in the United States of America consume enough food each year to have an effect on interstate commerce. Under the reasoning of this case it is entirely possible for the United States Congress to mandate that every human being in the United States purchase food insurance designed to help pay for the food consumed by that particular person. Essentially the purchase of health insurance is not the only, and arguably not even the ideal, manner to purchase health care. I think ultimately this line of reasoning is the weaker portion of the decision regarding the commerce clause. Yet it takes up substantially more of the 64 page opinion than the portion of the opinion addressing how inaction constitutes economic activity.

A note on the argument regarding freedom of religion

At the end of the opinion, Judge Kessler addresses arguments made by the plaintiffs under the Religious Freedom Restoration Act. Judge Kessler appears to have decided that healthcare reform does not violate the religious freedoms of the plaintiffs. Having not confronted this issue before, I have no further commentary on it.

Effect on other jurisprudence

Judge Kessler is to be credited with writing a thorough opinion. She is also to be credited for acknowledging that her opinion will neither be the first nor the last word on the constitutionality of the individual mandate. Those watching these cases move through the federal court system should pay attention to see if any circuit court picks up the reasoning laid out by Judge Kessler. This opinion is a likely sign of the relative strength of the argument in favor of finding the individual mandate constitutional. If this is it, we are heading towards a declaration of unconstitutionality in the Supreme Court.

Friday, February 18, 2011

Privacy advocates should lament our loss of privacy in voting history, while constitutionalists should celebrate the vindication of the first and fourteenth amendments. A recent case concluded in the Circuit Court for the City of Richmond, KnowCampaign v. Rodrigues, is a cause for celebration of the constitution and lamentation of our privacy rights.

2009: Enter the Know Campaign

In 2009 a formerly unknown organization, called the Know Campaign, prepared to mail out personal voting history of friends and neighbors in an effort to encourage people to vote. Coverage here.

A major problem with their plan is that the information they sought to disclose could not have been obtained directly from the State Board of Elections as the Know Campaign was not allowed direct access to this information. The Know Campaign appears to have taken the safer route in 2009 and decided not to engage in direct mail campaigning.

Virginia Distributes Your Voting History (in part) to Recipients Outside the Government

So where does this information come from? Voting history, (whether you voted, but not who you voted for) is collected and maintained in databases held by the state board of elections. This information is then made available (for four years) to a select group of individuals and organizations so they can affect the political process. This select group able to obtain theses records under Va. Code § 24.2-406 is limited to “candidates, elected officials, or political party chairmen and to no one else.”

The information included in these lists consists of your name, the general elections and publicly run party primaries you participated in, and your address. This information is used by those three special categories of candidates, elected officials, and party chairman to identify likely voters, and make rough identifications of party affiliation based on primary vote participation.

2010: The General Assembly Acts (or rather fails to act), and the Know Campaign Identifies a Legal Strategy

According to the Virginia Pilot, the General Assembly tried to change Va. Code § 24.2-406 during the 2010 session and failed to do so. In the interim , the Know Campaign appears to have filed and nonsuited case No. CL09005389 in the Circuit Court for the City of Richmond (an explanation of what a nonsuit is and how it works (or does not work) requires far more than a two sentence explanation and will be reserved for another time).

Thursday, February 17, 2011

Ignoring the fact that Virginia’s current Attorney General will not always be Virginia’s Attorney General, two Senate Democrats (Sen. Don McEachin and Sen. Chap Petersen) and a Delegate (Del. David Toscano) in a politically motivated manner sought to curb the powers of the Virginia Attorney General to investigate fraud perpetrated on the Commonwealth of Virginia.

Today that attempt was unceremoniously put to rest in the House of Delegates Civil Subcommittee by voice vote.The Democrats on the Subcommittee did not appear to even force a recorded vote.Washington post coverage can be found here.

A word to statewide office seekers:If pushing politically motivated legislation that you know will fail, make a bigger deal about it.Activists will remember how hard you fought for the things you believe in.

A link to a press conference of the bills’ supporters so you can hear their own words can be found here.

Wednesday, February 16, 2011

Four bills affecting the Virginia Freedom of Information Act [“FOIA”], Va. Code §§ 2.2-3700-2.2-3714, are facing scrutiny in the Virginia Senate General Laws and Technology Committee today. FOIA is a system for requesting copies of public documents for non-criminal purposes. It is a tool used primarily by journalists, politicians, and citizen activists to learn more about their government and affect or report on its actions.

Those who tend to believe in the infallibility of the government, or wish not to be scrutinized while in power tend to oppose expansions to FOIA. Those who seek information about their government from the outside tend to favor expansions to FOIA. Below is a brief description of the four bills before the Senate General Laws and Technology Committee for Wednesday February 15, 2011:

HB1457: This bill doubles the penalties assessed against the public official in court proceedings when the court finds that the violation is willful and knowing. Originally this bill also included a statement that the public official who is found to have willfully and knowingly violated the statute could be suspended or fired. This latter portion has been removed. On the whole this increases accountability, and is a move in the right direction.

HB1860: Under Va. Code § 2.2-3713 a person suing to enforce FOIA is guaranteed a hearing within seven days. This bill would restrict the seven day guarantee. The guarantee would only apply in those instances in which the party being sued has a copy of the lawsuit three or more days prior to filing the lawsuit. This is a minor additional restriction in the FOIA process. This is a move in the wrong direction, but does not dramatically cut down on the powers of citizens.

Monday, February 14, 2011

The version of SB851 offered by Se. Chap Petersen (D - Fairfax) that passed the Virginia Senate has high probability of passing the House. In its current format it will cause more confusion in preliminary injunction matters than the current standard.

In my post dated January 9, 2011 I critiqued the bill as originally proposed, discussed the standard for temporary injunctions without this statute, and identified a potential weakness.

The Senate amended the bill. Unfortunately the amendment increases the problems with the bill, while the original problems remain unresolved. If passed in its current format, it will disrupt and prevent orderly adjudications of preliminary relief in civil cases.

The amended version of the bill gives the expected four factor test, and states that the court should “review” the four factors. It does not say that relief should only be based on the four factors, or that the four factors should be balanced to determine the equities and grant or deny relief. Arguably, as written, a Court need only “review” the factors, and then could grant relief based on the judge’s own interpretation of common law rights to and standards for preliminary relief.

Absent from any amendments are clear instructions of how and when to apply preliminary relief. To make SB851 workable in a courtroom the following additional items need to be added:

Sunday, February 13, 2011

Based on reports from a number of sources, Ron Paul just won the CPAC straw Poll by a substantial margin.Ron Paul obtained 30% of the vote, Mitt Romney obtained 23%, and the rest of the field(13 identified candidates) all obtained less than 10% of the vote.I am happy for Ron Paul, and happier for his supporters (I still have a Ron Paul 2008 sign in my office), but more importantly I feel the results of the straw poll show a lack of enthusiasm among the conservative base.

First the results of the straw poll show good organization:Ron Paul and Mitt Romney have organized supporters.They can not be ignored, and the Republican nominee will need to figure out how to appeal to most of these supporters if the nominee wants to actually win the Presidency.

Second the results show a lack of organization among the rest of the field.The first primary and caucus will occur in less than a year, and at arguably the biggest meeting of conservative activists, most potential candidates did not put up a fight.

Only one third of the attendees at CPAC actually voted.If all of them had voted for the same candidate, that candidate could have won with 65% of the vote, with Ron Paul coming in second.Even among those who cared enough to show up to CPAC, most of them are unenthusiastic about supporting anyone in the field as it stands.

If Republicans want to defeat President Obama they will need to set aside their differences and learn to show enthusiasm for more than just our chosen candidates.Perhaps the lack of enthusiasm translates into an ability to support a broad range of candidates.Otherwise, it is time for conservatives to start adjusting to four more years of President Obama.

Tuesday, February 8, 2011

Having opined on a number of bills affecting civil procedure in the 2011 General Assembly Session Crossover is an excellent time to update people on the status. Links below under each bill number refer back to my posts addressing each topic. For the uninitiated I am using the Photosynthesis tool at Waldo Jaquith’s amazing public service project, Richmond Sunlight, to track legislation.

In the Virginia House of Delegates

HB1499 - Would have required landlords to store tenant’s property and the landlord’s expense upon eviction. This was a horrendously bad idea. I never managed to write a blog post about it. Failed in the Civil Subcommittee of the House Courts of Justice committee on a 7-4 vote. The interested fact about this is that the subcommittee vote was actually recorded rather than allowing the bill to be killed without any accountability.

HB1590 - Increases the jurisdiction of General District Court civil cases. It is about time. Faster and less expensive litigation for slightly larger cases, means greater access to the civil justice system. Passed the House of Delegates. Fundamentally the same as SB774 that has passed the Senate.

HB1640 - This would have created a modified loser pays rule that only benefits Defendants. This bill was so bad it would have required pages of criticism. Luckily this bill was killed by inaction in the House Courts of Justice Civil Subcommittee.

HB1787 - This bill would have created an automatic presumption about division of custody in child custody cases. All things considered, creating an automatic presumption is probably slightly better than the current system. Bill allowed to fail by inaction in the House Courts of Justice Civil Subcommittee.

HB1807 - This bill would have fixed a procedural problem in child custody cases, would have lessened the workload of litigants, attorneys, and clerks, and would also have avoided procedural confusion. Left to die in the House Courts of Justice Civil Subcommittee.

HB2199 - One of the more interesting civil justice bills of the session, this bill would have created a reverse privilege to protect journalists. Mired with procedural problems, the bill was allowed to wither in the House Courts of Justice Civil Subcommittee.

HB2289UPDATE - This bill increases the powers of HOA’s to sue residents in General District Court without extending similar rights to property owners. Good for HOAs, good for attorneys, bad for property owners. As an attorney and a property owner in an HOA I am opposed to this bill, but will still be collecting fees representing property owners who suddenly have far more to lose. Passed the House with cosmetic changes. Senate version SB1327 passed the Senate with identical cosmetic changes.

In the Virginia Senate

SB774 - See HB1590 above.

SB798 - The most interesting of the foreclosure bills for suggesting movement to a judicial foreclosure system, this was defeated in the Senate Courts of Justice Committee.

SB831 - This is the weaker of the Senate attempts to reign in the investigative powers of the Attorney General. This bill passed the Senate on an almost party line vote. Can you guess the Republican that crossed the aisle without looking? Recorded vote here.

SB851 - Fixes a procedural problem in civil cases by setting a standard to obtain preliminary relief. Necessary, and useful. Passed the Senate.

SB1314 - Sen McEachin’s overreaction to perceived problems with our current Attorney General. He quietly gave up this bill, and covered up his capitulation with procedural tactics. The LIS reports that this bill passed the Senate as part of another bill. Read my post, read the drafts of the bill and SB831, and the procedural voting history. This bill was abandoned by agreement in the Senate Courts of Justice Committee.

SB1327 - See HB2289 above.

Updates on passed legislation

I will take a look at some of the other civil justice legislation that survived crossover through the coming weeks.

Monday, February 7, 2011

I have been following the Virginia General Assembly for years, but mostly to tell when it begins and ends, because it had a particular effect on my job. One thing that happened every year is something called “Crossover.” Crossover is the point during the legislative session in which each house may no longer consider its own bills, and may only consider legislation passed by the other house in the General Assembly. Notice there is no citation for the definition of Crossover.

Doing a web search for “crossover” one finds a few vague references to the date of Crossover, or legislative updates based on Crossover, mostly from years past. People involved with the general assembly know what Crossover is, know how to identify when it from either the legislative calendar, or by doing math. Why? Because crossover is half way through the 45 (odd years) or 60 (even years) day session.

If you are looking for a definition, a few folks have a decent definition readily understandable to someone vaguely familiar with a general legislative process.

As with everything in the legal world the idea came from somewhere so I continued my search for the authority behind Crossover day. Virginia has an online system designed to allow you to review rules, statutes, and legislation from the comfort of your high speed internet connection called the Legislative Information System. Doing a keyword search for Crossover in the LIS does not result in an explanation of the authority for Crossover.

Next I went back to the Virginia Constitution. The Constitution does not reference Crossover, and does not indicate when bills may no longer be considered in one house, and only considered in the other house. Of interest in the legislative process, the Constitution on the other hand does indicate that to become legislation bills must be referred to and approved by a Committee, and that its title must be read in a daily calendar on three different days. Constitution Article IV, Section 11. In other words these items can not be changed by the mere passage of rules.

I then Checked the Rules of the House of Delegates and the Rules of the Senate. There is no reference to Crossover, and no reference to a date in which either house may only consider bills form the other house.

Moving on to an entity called Legislative Services, I thought for sure here is the secret repository of information regarding the timing of each session. Legislative Services is the entity that actually drafts legislation so that it conforms to the rest of the Virginia code, and makes some logical sense when read aloud. These folks actually do us quite a big favor by taking the actual writing of laws out of the hands of legislators. I just could not find any authority there either. But it was hiding. On the Publications page there is a link to Session Calendars. Although I had previously clicked on links for Session Calendars on the Legislative Services page before, I tested again. I had reached the promised land.

Thursday, February 3, 2011

Legislation careening toward the Governor will streamline HOA’s power to force homeowners to comply with architectural guidelines or be held in contempt by a judge.

On January 14, here, I described SB1327 and its identical house counterpart HB2289. These bills are flying through both chambers and there is substantial risk that nearly identical bills will pass both chambers before crossover (the time after which each chamber may only consider bills passed by the other chamber). If this happens citizens are essentially assured that broad new powers will be put into the hands of HOAs.

The major problem: SB1327 and its identical house counterpart HB2289 give HOA’s the power to obtain a court order from a General District Court [GDC] Judge forcing a homeowner to comply with architectural guidelines under threat of being held in contempt of court.

Why the HOAs want this power: Right now if there is a violation of architectural guidelines (or other covenants) the HOA can fine you up to $900.00 for an ongoing violation. The HOA can put a lien on your property for that amount. The HOA can sue in the GDC obtain a judgment and garnish your wages. But, if they actually want to force you to change your property they must sue in the Circuit Court. The Circuit Court is the only place that can enter an injunction forcing you to do or not to do something.

So why does it matter if HOAs can sue in either the Circuit Court or the GDC?: It is best to use a specific jurisdiction as an example, Fairfax. A Fairfax Circuit Court civil case that is actively contested will generally take 8-12 months. Attorneys’ fees are counted in the tens of thousands. For a GDC civil case that is actively contested, the case will generally take 2-3 months, and attorneys’ fees will often run $5,000.00 or less. Another major difference between the two courts is the success of default judgment. Default judgment is what happens when the party being sued fails to properly respond. It is a lot easier to obtain default judgment in the GDC, and a lot harder to overturn default judgment in the GDC.

So aside from cost, time, and ease of default judgment, isn’t the current system good enough for HOA’s?: No. When bringing a lawsuit for violation of covenants the HOA must bring all claims and seek all remedies regarding a transaction or occurrence in the same proceeding, or they are waived. This means under the current system an HOA can not sue in GDC for money, and then later sue in Circuit Court later for an injunction. If the HOA ever thinks it might want the injunction, the entire case must be filed in the Circuit Court.

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*Disclaimers: This website is for informational purposes only. Nothing in this website should be regarded as establishing an attorney-client relationship. Nothing in this website should be regarded as soliciting for employment in jurisdictions to which Paul A. Prados is not admitted. Past outcomes are dependent on the particular facts and circumstances of each matter and do not predict future results, and each new matter will be dependent on the facts or merits of the particular matter. There is no procedure in the Commonwealth of Virginia for approving certifying organizations or establishing any specialties listed herein.